zimbabwe: Media law changes broaden state control

Media law changes broaden state control
By Sizani Weza

Nothing smacks of hypocrisy more than a law that purports to afford a profession some protection but which is, in fact, replete with clauses that restrict its practice.
It is more serious still if that law attacks one of the most fundamental human rights guaranteed under our constitution– that of freedom of expression and our right to be fully informed.
But Zimbabwe’s Access to Information and Protection of Privacy Act (AIPPA) does precisely this by creating a fictitious privilege out of the practice of free expression and then criminalizing those who violate the provisions of this repressive legislation. Such a law has no place in any democracy.

If the proposed amendments to AIPPA form the bulk of this article, readers should be under no illusion that any serious discussion about regulating the media and promoting access to information in Zimbabwe must now start with how this law in all its forms (amended or not) affects each and everyone of us.
AIPPA is a bad document. Its intentions are calculated to buttress government’s present campaign to dismantle the instruments of democratic practice by silencing the voices of those criticize it excesses.
Despite the fact that dozens of changes were made to the original Bill, which the Parliamentary Legal Committee (PLC) described as “the most calculated and determined assault on our liberties guaranteed by the Constitution ”, AIPPA remains an extraordinarily repressive piece of legislation. Indeed, some amendments proposed by Parliament were discarded on the basis that they would erode “the policy thrust” of a law that intended to give the Minister of Information and the Media and Information Commission that it created unprecedented authority, comparable only to those of the police force and the Supreme Court. In its original form, the Bill even granted the Commission immunity from legal proceedings, a right only enjoyed by the President in the current Constitution.
While these extreme authoritarian provisions did not survive in the Bill’s passage through Parliament, they provided a clear indication of the “policy thrust” that motivated government’s thinking when it introduced the legislation.
And further, a glimpse at some of the statements made in the past by the law’s chief proponent, Minister of Information and Publicity in the President’s Office, Jonathan Moyo, reaffirms these intentions. Just hours before the bombing of The Daily News printing press in the early hours of January 28th 2001 Moyo was quoted on national radio and television (27/01/2001: main news) saying: “… because of its anti-Zimbabwean stance the pro-MDC Daily News poses the greatest threat to the national security and freedom of the press and government will not hesitate to take corrective and legal measures against the wayward publication.”
It is small consolation that Moyo condemned the bombing soon after it happened - albeit blaming the opposition Movement for Democratic Change (MDC) without providing any evidence to support his claim. The state’s utter failure to bring the culprits to justice for this exceptional act of blatant terrorism nearly two years ago can only be measured by its subsequent silence on such a grave matter.
More recently, in April this year, the minister warned government parastatals against advertising in The Daily News. This came immediately after the private daily published an inaccurate report alleging that two young girls had witnessed the decapitation of their mother by alleged ZANU PF party supporters. Moyo said that the government could not allow advertisers to “subsidize” the “destruction” of Zimbabwe. He added that if the parastatals “did not stop the rot on their own” the government would ensure the law assists them.
From these and numerous other threats the minister and other government officials have made against the private press, the “policy thrust” of AIPPA becomes abundantly clear: It is nothing more than a government attempt to silence public dissent and its messengers in an effort to promote the selfish interests of the Mugabe regime - which is to extend its stay in power by as many hours as the Zimbabwean public can tolerate.
To do this effectively, the government has to suffocate all the alternative sources of information that reports on government excess and the voices of its victims through economic, legal and all other means at its disposal.

And AIPPA is the instrument with which it plans to achieve this.
The Act intends to “licence” journalists and “mass media services” and imposes fines and jail terms for breaking the provisions of a law that turns the practice of receiving and disseminating news and opinion into a privilege.
No longer is the telling of stories and the dissemination of opinion a right that is constitutionally protected. Under AIPPA the practice of journalism and indeed, the dissemination of any information to an unlimited audience will be severely regulated and enforced.
Already, at least 15 journalists have been charged under AIPPA since it was promulgated on March 15th this year. Others have been threatened, harassed and arbitrarily detained. Beyond this, an increasingly violent and widespread campaign has been launched to prevent private newspapers from being circulated freely around the country. Little effort has been made to curb this entirely illegal activity, and even civic education material has been confiscated - a situation that denies Zimbabweans their right to crucial civic information.

AIPPA’s many evidently unconstitutional clauses and pending legal challenges have exposed the Act’s weaknesses and have convinced the government of the need to gazette amendments to the law.
These reduce its exposure to constitutional challenge and broaden the powers of the Commission and government’s control over the dissemination of all electronic and printed matter to unlimited audiences.

The amendments seek to expand definitions of terms to media related activities that were previously not covered in the original Act. For example, “mass media service” will mean “any service that produces mass media products, whether or not it also disseminates them”. In addition the amendments also redefine a “mass media product” as “an advertisement, the total print or part of the total print of a separate issue of a periodically printed publication, a separate issue of a teletext programme, the total data or part of the data of any electronically transmitted material or audio or video recorded programme”.
The amendments broaden the organizations obliged to conform to the provisions of this law, subjecting virtually every individual and organization involved in the collection and dissemination of information in any form to direct government control and scrutiny.
A “mass media service”, according to the proposed amendments means “any service that produces mass media products, whether or not it also disseminates them”. And it ensures compliance under section 66 of the Act which requires that a ”mass media owner” carry out the activities of a “mass media service” “only after registering and receiving a certificate of registration in terms of this Act”.
The free flow of information in Zimbabwe will thus depend heavily on the decisions of the Media and Information Commission, which has the authority to decide the fate of those who gather and disseminate information for public consumption.
In the original Act, three of the seven members of the Commission were to be nominated by an association of journalists and an association of media houses. The proposed amendments seek to repeal this provision and give the Minister sole discretion to appoint all commissioners who he can suspend or dismiss for “conduct that renders him/her unsuitable”. What constitutes such conduct is not defined, leaving it open to abuse.
That the media fraternity will have no say in the whole process as given in the proposed amendments is significant. This will have the effect of eroding professional independence and thereby undermining the integrity of information reaching the Zimbabwean public.
The Commission’s powers have also been expanded. It can “hold inquiries and issue orders…where it considers that no substantial disputes of law or fact are required to be determined”. This means that the Commission can decide whether or not a dispute involves a matter of fact or law, and will decide all questions of fact and law that arise in the course of an inquiry, thereby usurping the function of the courts. This paves the way for further abuse of the system.

In the past stringent defamation laws have more than adequately served to protect the reputations of individuals from unscrupulous journalism. AIPPA suddenly broadened this limitation on freedom of expression to include the dissemination of any falsehood without qualification. Such a crude “blunderbuss” approach to silencing alternative sources of information is so plainly at odds with section 20 of the Constitution guaranteeing the nation’s rights to free expression and to the public’s unimpeded access to information that amendments providing some qualification for this “offence” were necessary to avoid a successful challenge to the law on constitutional grounds.
As a result, the definition of criminal offences under the amendments has been narrowed in some cases. But they still criminalize the “reckless” publication of any statement without providing some definition for what this is. The same applies to those who publish a statement “without having reasonable grounds for believing it to be true”. Once again, there is no definition for what the word “reasonable” might mean.

The document introducing the amendments that more narrowly define criminal offences under the Act states that they have been made so as to “frame the offence of abuse of freedom of expression in a manner that avoids any apparent conflict with the constitutional freedom of expression.”
Clearly then, these amendments have been made to evade any legal constitutional challenge to the Act while retaining its punitive clauses that undermine Zimbabweans’ constitutionally guaranteed rights to freedom of expression.

While there is nothing objectionable in providing broad legal boundaries to information dissemination, these should not impinge on the constitutionally guaranteed rights to receive and impart information freely because this is the foundation upon which all participatory democracies are built and sustained. Government’s present campaign to craft laws that curtail this free flow of information grossly erodes these rights.

Ideally, any attempt to legislate for access to information should have started with a purge on the Department of Information and Publicity. Normally, such ministries are supposed to facilitate public access to government-held information. But experience, especially in Zimbabwe and elsewhere, shows that they work against this principle. Information ministries work to deny the public certain information the government does not want known. Further, curtailing the operations of the media does not solve the problem of access to information, but rather, exacerbates it.

Indeed, the proposed amendments reinforce the repressive tendencies of AIPPA. Serious and meaningful debate on media regulation should not start with AIPPA since it is a bad document. Its inadequacies as a democratic tool for promoting the free flow of information in the public interest are not helped by the proposed amendments. And its selective application solely against the private Press, as past experience has shown, clearly demonstrates that the “policy thrust” of its promulgation was to silence dissent and starve the nation of important and impartial information.
Ends

Sizani Weza is an Advocacy Programme Officer with the Media Monitoring Project Zimbabwe, 15 Duthie Avenue, Alexandra Park, Harare, Tel/fax: 263 4 703702, Cell: 263 11 7116645, E-mail: [email protected] or [email protected]